Playing Fast and Loose with History

A few years ago an edition of the Summerville Journal Scene (Local Newsprint) carried a Letter to the Editor by a local opponent of the Convention of States Project. The author of this LTE happens to be the co-chair of The Summervlle 9-12 Project, which bills itself as a "public education group founded upon nine principles and 12 values of America’s founding".

As a Constitutional historian, I'm staggered by the quantity of historical error in this article and lack of basic understanding of historical facts. It's one thing to be opposed to something and have an opinion. It's an entirely different matter to write an article strong on emotion and devoid of Constitutional and historical accuracy in almost every respect. Should we not hold those that claim to be Constitutionalists to the same standard that we hold the left? To do otherwise is utter hypocrisy. And the group this author co chairs bills itself as a "public education group". The Irony.

To be clear, I have no problem with the authors opposition to the Convention of States Project. I disagree with her, but she is free to opine on her opposition. What I take issue with is playing fast and loose with Constitutional history and facts. When someone is specifically referencing Constitutional history as part of their argument, and claims to be a Constitutionalist, they have a responsibility to exercise care to use the historical record rather than simply to emote and throw spaghetti on the wall so to speak with baseless charges about Constitutional history. I will deal with the issues raised or implied by the author concerning the Constitution that are totally inaccurate.

First, I want to address the authors assertion that somehow the Constitution that was produced at the Philadelphia Convention was illegitimate. The author states “Our own Founding Fathers threw out the Articles of Confederation at their Constitutional Convention. They also reduced the number of states needed to ratify. Yes. America’s first Convention of States was a run-away convention.”

This is worth spending time explaining because the “runaway convention” argument is at the core of most opposition to an Article V Convention today. Before I even address that statement, honest readers would have to ask wouldn’t this assertion then make the document we revere today illegal? If those men did disobey their charge at Philadelphia, wouldn’t that make them less than honorable? The author doesn’t explain those inconsistencies because the “runaway convention” myth of 1787 is nothing more than the biggest historical lie ever told in our nation’s history. The truth of the matter for anyone wanting to do just a little historical research is that those men completely OBEYED their charge and amended the Articles of Confederation to meet what they called the “exigencies” of the union (their word), or the emergency in the union to use modern day vernacular. I cannot tell you how many times I have had someone tell me that “they were just supposed to amend the Articles of Confederation”. Then I ask them where they got that from…and they tell me someone else told them that.

Honest historians and Constitutionalists do not have to wonder what the framers were charged to do at Philadelphia with the Articles of Confederation in 1787. James Madison dedicated an entire essay (known today as Federalist #40) to explaining in painstaking detail what happened at that convention. In Federalist #40 the primary source writer of the Constitution tells us exactly what the commissioners to Philadelphia were charged to do. They were charged to “devise such further provisions as shall appear to them necessary to render the Constitution [Articles of Confederation] of the federal government adequate to the exigencies of the Union”. The fact of the matter is that they were given broad latitude to save a young nation that was in grave danger do to the failure of the Articles of Confederation. And by the way, logic tells us that if you make one amendment or 500 amendments, you still amended the document.

This is probably the root of most of the error in understanding about an Article V Convention. This erroneous viewpoint has absolutely zero basis in fact when the actual historical record is looked at. And to be honest, it is a sad state of affairs for someone that claims to be a Constitutionalist to be that ill informed. The historical record on what occurred at Philadelphia and even at Annapolis the year before is voluminous. It baffles me how anyone can spend time defending the Constitution and the 10th Amendment, but then at the same time absolutely disparage the work of the framers in Philadelphia. If the framers went “rogue” at Philadelphia as asserted, then we have a completely illegal document today. You cannot have it both ways, you cannot purport to love and defend a document….and at the same time declare it to be illegal. Saying that the author is disparaging the framers is not overstated, the position that the framers “threw out the Articles” reveals that the author has either not been introduced to Federalist 40, or believes Mr. James Madison to be a liar. Both are bad options by the way for someone writing and opining about Constitutional history. In Federalist 40 Madison point by point explains every step of the Philadelphia Convention beginning with the call from the previous meeting in Annapolis. There is so much misinformation out there about this, it is truly sad, we live in an age where accurate historical data is available literally at our fingertips.

The Philadelphia Convention was given the solemn charge from the Annapolis Convention to “render the federal Constitution ADEQUATE TO THE EXIGENCIES OF GOVERNMENT AND THE PRESERVATION OF THE UNION.” In other words, there was an emergency in the Union. History of the period after the ratification of the Articles and post-Revolutionary war reveals to any person wanting to look at the record that the failure of the Articles to address things like Commerce had reduced the 13 States to economic warfare and the union was coming apart at the seams. The British were eying their former colonies from across the Atlantic ready to retake them. Hence the word “exegencies” and “preservation” in the call. The framers were given the charge to basically do whatever it took to preserve the union. However, this did not mean that they just did whatever they wanted. They took steps to insure that the Articles were followed, even down to the ratification process.

The authors statement about the framers going rogue and reducing the amount of states to ratify is also not only misleading but flat out false. The author fails to mention after that slanderous charge either unknowingly or intentionally that the exact language in Article XIII of the Articles of Confederation require that the any changes be “confirmed by the legislatures of every State”. This provision was absolutely followed to the letter. When the draft Constitution was sent out to the 13 states under the new ratification procedure outlined in Article VII of the Constitution, it was sent to every single state. Article VII of the Constitution states that “The Ratification of the Conventions of nine States shall be sufficient for the Establishment of this Constitution between the States so ratifying the same. While it is true that there was a process change between the Articles of Confederation and the United States Constitution, a look at the historical record clearly reveals that the process was followed to the letter. Since the process changed from “13 legislatures” to “9 conventions”….every state had to approve of the change in order to get sent into convention. All 13 states approved as evidenced by the fact that all 13 sent the Constitution into state conventions. Even Rhode Island and North Carolina, who initially held off on ratification….approved of the change as evidenced by the fact that their legislature sent it into Convention. At any step of way, there were any number of ways for the states to reject the process change….but all complied. None of them refused to send it to Convention. If the states or the Continental Congress had felt that the process was violated, the record would show that…there is no such record of any state or the Continental Congress doing that.

It is ok for people today to fear the Article V process; honest people can disagree on its use. But it is not ok to make up or revise history to support that fear.

Don’t take my word for any of this, research it for yourself. Don’t only read Madison’s Federalist #40, read Madison’s letter to Edward Everett dated August 28, 1830 where he details the fact that the Article V process is THE way for the states to defend the Constitution. He clearly explains that the ultimate way for the states to protect their 10th Amendment rights is to come together in convention and reset the language that has been perverted.

The author goes on to state: "Advocates for an Article V Convention merely switched words. What was an Article V Constitutional Convention, they now label a “Convention of States.”

This is another statement devoid of truth and historical perspective either through lack of knowledge of history, lazyness to conduct adequate research, or an attempt to smear the proponents of the Convention of States Project by implying that the terminology "Convention of States" is somehow a newly made up phrase to mask some nefarious agenda.

Again, just a smidgen of scholarly research would reveal that "Convention of States is the historically accurate terminology for a state led amendment proposing convention. The very first application under the new Article V of the newly ratified United States Constitution was filed by the state of Virginia in May of 1789 to propose a Bill of Rights. Madison being true to his word and promise conversely proposed those amendments in the 1st Congress in June of 1789 and an amendments convention became unnecessary. Virginia not waiting for this filed the very first application for the states to do it in May...and in that application, the very first application under Article V they specifically referred to such a convention as a "Convention of the States, they never used the term "Constitutional Convention because everyone at that time knew the difference.

It is interesting to discover that the root of the “runaway convention” actually has its genesis with the far left in the early 60’s.

The author of the article also states: “Unfortunately, the Left and the Right have been working together for an Article V convention for the first time in history.”

She has been saying this for almost 4 years. When we started this effort, that was akin to throwing the proverbial spaghetti against a wall to see If something would stick. Today, four years after the Convention of States Project was founded, the actual proof Is exactly the opposite. Just last week Hillary Clinton was railing against the “far right” initiating an Article V convention and railing against it. About 5 months ago, 230 Soros backed groups led by the heavily Soros funded group “Common Cause” signed a statement vehemently opposing an Article V Convention. Here in South Carolina, when the COS resolution came before the full SC Senate Judiciary for a vote in 2015, every single Republican voted for it and every single Democrat voted against it. If the left wants a Convention of States, they have a strange way of achieving it.